Purchase Order Terms & Conditions

ACS Industries, Inc. and Subsidiaries Contract Conditions Applicable to all Purchase Orders

1. MODIFICATIONS – No changes or modifications in this order shall be permitted except upon the written authority of ACS.

2. PRICES – Seller agrees that its price for materials ordered hereby will not be higher than specified herein, and that regardless of such specification will not be higher than its lowest price prevailing on the date hereof for the quantity ordered. Unless otherwise specified herein all prices shall be deemed to include sales and excise taxes, packing charges, and any other charges or extras as and where applicable.

3. DISCOUNT POLICY: ACS will compute discount periods as commencing on the later of (i) the invoice date or (ii) the date the invoice was received by ACS.

4. LABELING, PACKAGING, & SHIPMENT – Seller shall package and label all goods supplied under this contract in compliance with all applicable local, state, and federal packaging and labeling laws in effect at the time of shipment. ACS’s special labeling and packaging instructions, if any, will be adhered to at no extra charge to ACS unless otherwise stated herein. All materials ordered hereby are purchased F.O.B. ACS’s designated destination and no charges will be allowed for freight unless otherwise specified herein. Seller agrees to route material via ACS’s selected modes of transport and via ACS’s selected carriers for all materials ordered F.O.B. Seller’s plant and Seller further agrees to bear any excess transportation charges occasioned by Seller’s failure to comply with ACS’s shipping instructions.

5. DELAYS – All materials ordered hereby shall be shipped to arrive not later than the delivery dates specified herein. In the event that any delivery is delayed by more than the lesser of ten days or one half the contract lead time the ACS is given the option to purchase such delayed materials from other suppliers and the Seller agrees to bear any increase in costs occasioned thereby. The contract lead time is defined to mean the number of days from the date this purchase order was issued until the date delivery was originally promised by the Seller. ACS’s required delivery is the Seller’s promised delivery unless otherwise specified herein. Delays due to causes beyond Seller’s control shall not be subject to this contract provision.

6. QUALITY – Seller expressly warrants that all material furnished under this contract conforms to the requirements and specifications as furnished by ACS and that all goods provided will be free from defects in material and workmanship. Seller further warrants that all items supplied hereunder will be merchantable and fit and sufficient for the purposes intended.

7. CHANGES – ACS reserves the right at any time to make changes in drawings and specifications as to any material and/or work covered by this contract. Any difference in price or time for performance resulting from such changes shall be equitably adjusted and the contract shall be modified in writing accordingly. Seller agrees to give ACS advance notice in writing of all specification, design, part number, and other identification changes as well as major changes in process, procedure, or the manufacturing location applying to the goods supplied pursuant to this contract.

8. INSPECTION & ACCEPTANCE – Inspection and testing of the articles supplied hereunder may at ACS’s option at Seller’s plant and/or at the point of destination. Seller will at all times allow access to its plant to ACS inspectors, but this right whether or not exercised shall not affect the right of ACS to reject faulty material or make any claim in regard thereto. At the option of ACS, ACS may make a surveillance of Seller’s inspection, quality, and reliability procedures as well as the data supporting same. Acceptance of the goods by ACS will not relieve Seller of any of its obligations or warranties hereunder and in no event shall payment be deemed to constitute acceptance.

9. EXCESS & DEFECTIVE GOODS – Except for customary quantity variations recognized by trade practice goods in excess of those specified will not be accepted, and if as a convenience to Seller, ACS agrees to hold such excess goods temporarily at an ACS plant, then any risk of loss shall be solely upon the Seller. If any of the goods fail to meet any of the warranties contained in paragraph 5, Seller, upon notice thereof from ACS, shall promptly correct or replace the same at Seller’s expense. If Seller shall fail to do so, ACS may cancel this contract as to all such goods and, in addition, may cancel the then remaining balance of this order. In addition, ACS may secure at its option other goods from other suppliers to replace those defective goods furnished by Seller, and in this event Seller shall bear any additional costs occasioned thereby including price differentials and added freight charges. After notice to Seller of excess or defective goods, all such goods will be held entirely at Seller’s risk. ACS may return all such goods to Seller at Seller’s risk and all transportation charges both to and from the original destination shall be paid by Seller. Any payment for such goods shall be refunded by Seller.

10. TOOLS, DRAWINGS, PRIVILEGED INFORMATION, & MATERIAL – All specifications, drawings, technical information, data and/or copies of same in addition to patterns, templates, machinery, equipment, dies, jibs, fixtures, or tools furnished by ACS to Seller hereunder shall be used only in the manufacture of material for ACS, shall not be divulged to any third party without ACS’s prior written consent, shall remain ACS property, and shall be returned to ACS promptly upon demand. ACS expressly forbids Seller from producing ACS proprietary parts for sale to any third party. All such machinery, equipment, templates, dies, patterns, jibs, fixtures, or tools shall be maintained in good working order by Seller at no charge to ACS. In the event that ACS has supplied material to Seller for use in performance of this contract Seller agrees to notify ACS of any defects in the material supplied prior to performing any work upon the material or upon discovery of such defects. Seller agrees to be charged for the full cost including transport costs of any material damaged or scrapped through Seller’s actions, and agrees to return such material upon demand whether Seller has completed work or not. Unless otherwise agreed, Seller at its expense shall insure all items mentioned above for the reasonable value thereof against loss or damage of any kind. Unless otherwise specified herein, the items ordered by this contract are to be produced with tools, jibs, machinery, equipment, dies, and fixtures obtained by Seller at its expense and which shall be the property of the Seller.

11. PATENTS – (A) Seller shall hold and save ACS and its affiliated corporations, and their customers harmless from loss and/or liability of any nature or kind arising out, or existing because of the infringement or alleged infringement of any patent for or on account of the manufacture sales or use of any goods furnished hereunder except in the case where compliance by Seller with specifications prescribed by and originating with ACS constitutes the sole basis of the infringement or alleged infringement. ACS shall promptly notify Seller in writing of any suit filed against it or its affiliated corporations, or their customers, on account of any such infringement or alleged infringement, and at Seller’s request shall give Seller control of the defense of such suit insofar as ACS has the authority to do so, and information and assistance for the same, all at Seller’s expense. ACS and the party against whom suit is brought may be represented by their own counsel in any such suit.  (B) ACS shall defend at its expense, any suit brought against Seller for the infringement or alleged infringement of any patent for or on account of the manufacture or sale of any goods furnished hereunder, and shall pay all damages and costs awarded therein against Seller, in any case where compliance by Seller with specifications prescribed by and originating with ACS constitutes the sole basis of the infringement or alleged infringement if notified in writing and given authority, information and assistance, at the expense of ACS, for the defense of same.

12. PRODUCT LIABILITY – Seller agrees to defend, protect, and hold harmless ACS, its subsidiaries, successors, agents, and dealers against any and all claims for personal injury, property, consequential or special damages resulting from improper or defective material, workmanship or design, but only if Seller is promptly notified in writing of any such claim and given the right to defend, settle, or otherwise dispose of such claim through counsel of its own choosing. ACS shall cooperate in the investigation and defense of any such claim or suit. Seller’s obligation shall not extend to, or include claims resulting from the use of any goods in combination with unsuitable goods not furnished under this Agreement, or from an unauthorized modification or alteration of the goods.

13. INSURANCE – Where fulfillment of this purchase order requires Seller to perform work on the premises of ACS, Seller shall procure at its own cost and keep enforced the following insurance, satisfactory to ACS as to form and limits of liability until completion and final payment hereunder: (a) Workers’ Compensation insurance as required by the Workers Compensation laws of the state of Ohio (b) Public Liability and property damage insurance, including contractual liability insurance with ACS as the named party and (c) Automobile liability and property damage insurance if automobiles, trucks, trailers or other vehicles are to be used. Prior to the commencement of any work hereunder, evidence of such insurance in policy, shall be provided to ACS. Where any part of this purchase order is performed by a subcontractor of Seller, evidence of such insurance on behalf of each subcontractor shall be provided by Seller to ACS.

14. SETOFF – ACS may setoff against or recoup from any amounts owing to Seller or its affiliates amounts owed to ACS by Seller resulting from breaches by Seller of its obligations to ACS under this contract or any other contract.

15. INDEMNITY – Except as otherwise provided in the clauses on patents and product liability in no case shall ACS indemnify or hold harmless Seller against any and all claims for personal injury, property, consequential or special damages resulting from improper or defective material, workmanship, or design in products purchased from Seller hereunder.

16. APPLICABLE LAWS – This contract shall be construed according to the law of the State of Ohio, as applicable. All material supplied and raw products from which they are made must be produced in full compliance with all applicable local, state, and federal laws, rules, and regulations, and Seller indemnifies and holds harmless ACS from and against any liability, expense, or costs resulting from Seller’s failure to do so.

17. CERTIFICATION – The Seller hereby certifies that it will fully comply with Executive Order 11246 as amended by Executive Order 11375 Section 503 of the Rehabilitation Act of 1973 as amended, the Vietnam Veteran’s Readjustment Assistance Act of 1974 as amended, and Executive Order 11625 as amended and the rules and regulations issued thereunder, which are hereby incorporated by reference as appropriate. The Seller commits itself to such compliance by acceptance of this purchase order.

18. ACKNOWLEDGEMENT – In the absence of any acknowledgement or acceptance of this order, Seller’s commencement of work or shipment of material ordered shall be deemed acceptance of the terms and conditions herein.

19. TERMINATION – ACS may at its convenience terminate this order in whole or in part by written or telegraphic notice at any time. If this order is terminated, for convenience, any claim of Seller must be presented within ten days of ACS’s termination notice and shall be settled on the basis of reasonable costs Seller has incurred in performance of this order up to the time of cancellation.

20. WAIVERS – A waiver on the part od ACS of any of the provisions of this contract on any one occasion shall not be deemed to be a waiver of the same or any other provision for any subsequent occasion. Waivers must be in writing signed by ACS.

21. REMEDIES – No remedy herein provided shall be deemed exclusive of any other remedy allowed by law.